Rosenberry, J.
The defendant contends, first, that the tobacco as graded and bundled by the plaintiff contained damaged tobacco and tobacco below the grades specified in the contract, and that under, the terms of the contract he had a right to reject the entire amount tendered; second, that there is no evidence to sustain the finding of the jury as to the amount of sound, merchantable tobacco of the grades specified in the contract.
The first contention involves a construction of the contract. A contract similar to the one here under consideration was construed in Strander v. McIntosh, 169 Wis. 403, 172 N. W. 717, but the questions raised here were not raised in that case. The controversy, here turns upon the meaning of the words: “When the crop is ready for delivery the buyer agrees to examine this tobacco on the premises of the seller. If the amount of damage cannot be satisfactorily agreed upon, the seller agrees to return the advance money and surrender this contract at the time of examination.” Under this clause the buyer must examine the tobacco upon the premises of the seller. It is undisputed in this case that the buyer did examine the tobacco upon the seller’s premises. .The jury found, however, that this examination was not made honestly and in good faith, for the purpose of determining to what extent, if any, the tobacco was damaged and in unsound packing condition. The evidence shows quite clearly that the defendant did examine the tobacco on plaintiff’s premises and that he found it to be of the grade for. which the plaintiff after[473]*473ward sold it. That the contract is upon its face indefinite must be conceded. ’ Much of the .indefiniteness, however, disappears when the subject matter dealt with and the method of doing business is fully understood. It is to be noted that the contract is not for a specified amount of goods, of a specified quality, which are contracted to be delivered at a future date. At the time the contract was made plaintiff’s crop was .growing in the field, it was still subject to all the hazards of damage by the elements, and no one could tell how much tobacco' of the contract grades might be produced. The agreement on the part of the defendant was to purchase all the tobacco produced on the six acres during 1920 of the grades specified in the contract. It was further agreed that the plaintiff should harvest, cure the crop because the grades could not be ascertained without curing, strip the tobacco, and bundle the specified grades separately. To do this required the exercise of judgment as to what particular tobacco should be bundled as wrappers and binders and what should be bundled as fillers and what should be excluded as below the contract grades, such tobacco ordinarily being designated as stemming tobacco. When the tobacco was graded and bundled the buyer was tO' examine it. This examination could only be made for the purpose of determining whether or not he would accept the tobacco as graded by the plaintiff. The contract contemplated that differences of opinion might arise as to the grading of the tobacco. The finding of the jury in response to question No. 7 is clearly not sustained by the evidence. It appears without dispute that the tobacco when sold to a third party was weighed and inspected. It further appears that after the examination made by the defendant on the 25th day of February the • plaintiff re-graded and re-bundled some of this tobacco, for it appears that the number of bundles tendered at the time of the sale to the third party as wrappers and binders is less than the number of bundles tendered the defendant on February 25th. [474]*474The net weight of the tobacco claimed as binders and wrappers after re-grading was 6,430 pounds. The amount found by the jury of this grade was 5,787 pounds, and although the jury found in response to question No. 2 that there was no wet or damaged tobacco in that bundled by the plaintiff as wrappers and binders, they nevertheless for some reason deduct ten per cent, from the actual weight of the tobacco as to which there was no. dispute. The jury found that there was a substantial amount of tobacco tendered as binders and wrappers which was not of that grade. This sustains the claim of the defendant which was at the time of his examination on February 25, 1921, that there was in the bundles tendered to him as binders and wrappers, tobacco that should properly have been put in a lower grade. This shows that the examination made was in good faith and that it disclosed the facts as they existed.
Assuming as we must, in view of the verdict of the jury, that there was in the bundles tendered as being of the contract grades, tobacco of inferior grades, what was the obligation of the defendant under the terms of the contract, which provided that “if the amount of damage cannot be satisfactorily agreed upon the seller agrees to return the advance money and surrender this contract ?” This implies an agreement to agree upon the amount of damages, and if it related to a principal element of the contract its indefiniteness would no doubt render the whole contract unenforceable. 1 Page, Contracts (2d ed.) § 89.
It is, however, a subsidiary rather than a principal promise. It relates solely to grading of the tobacco, the grades having a well established and well understood meaning in the trade. The principal elements of the contract are clear and definite; the amount and quality of goods, all those of the specified quality raised by the plaintiff during the season of 1920; price thirty-five and one-half cents per pound for wrappers and binders, ten cents per pound for fillers; place of delivery, Coon Valley; and while the time of delivery [475]*475is not specified, there is no dispute but that it was to be delivered within a reasonable time after, it was in a deliverable state, which would ordinarily be some time in March or April succeeding the time of the making of the contract; payment to be made on delivery. The principal terms of the contract being definite, it is enforceable.
Certainly the contract does not require the defendant to accept tobacco not of the contract grades merely because it is bundled by the grower with the grades specified in the contract. The term “damage” as used in the contract is somewhat indefinite, but it is apparently used and was understood by the parties to be used in the sense of indicating the amount that should be deducted from the amount tendered in order to make a'proper allowance for wrong grading. It was the contention of the defendant that the tobacco tendered was of such an inferior grade that it would not pay to grade it by running it over the table, which appears to be the only way the grades could be accurately established. However, the jury has found against the defendant on that' contention. As applied to the subject matter here dealt with, we are of the opinion that the phrase unquestionably meant and was intended by the parties to mean that if upon inspection of the tobacco upon the premises of the plaintiff by the defendant it appeared that there was tobacco of inferior grades in that tendered, the parties should make a bona fide effort to agree as to the amount of the non-contract tobacco so included; that if after the making of such an effort the parties were unable to agree, the contract was then to be terminated and both parties released therefrom. Manifestly, good faith is no more required on one side than on the other, and if one party arbitrarily refused to perform he could not complain of nonperformance by the opposite party.
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Rosenberry, J.
The defendant contends, first, that the tobacco as graded and bundled by the plaintiff contained damaged tobacco and tobacco below the grades specified in the contract, and that under, the terms of the contract he had a right to reject the entire amount tendered; second, that there is no evidence to sustain the finding of the jury as to the amount of sound, merchantable tobacco of the grades specified in the contract.
The first contention involves a construction of the contract. A contract similar to the one here under consideration was construed in Strander v. McIntosh, 169 Wis. 403, 172 N. W. 717, but the questions raised here were not raised in that case. The controversy, here turns upon the meaning of the words: “When the crop is ready for delivery the buyer agrees to examine this tobacco on the premises of the seller. If the amount of damage cannot be satisfactorily agreed upon, the seller agrees to return the advance money and surrender this contract at the time of examination.” Under this clause the buyer must examine the tobacco upon the premises of the seller. It is undisputed in this case that the buyer did examine the tobacco upon the seller’s premises. .The jury found, however, that this examination was not made honestly and in good faith, for the purpose of determining to what extent, if any, the tobacco was damaged and in unsound packing condition. The evidence shows quite clearly that the defendant did examine the tobacco on plaintiff’s premises and that he found it to be of the grade for. which the plaintiff after[473]*473ward sold it. That the contract is upon its face indefinite must be conceded. ’ Much of the .indefiniteness, however, disappears when the subject matter dealt with and the method of doing business is fully understood. It is to be noted that the contract is not for a specified amount of goods, of a specified quality, which are contracted to be delivered at a future date. At the time the contract was made plaintiff’s crop was .growing in the field, it was still subject to all the hazards of damage by the elements, and no one could tell how much tobacco' of the contract grades might be produced. The agreement on the part of the defendant was to purchase all the tobacco produced on the six acres during 1920 of the grades specified in the contract. It was further agreed that the plaintiff should harvest, cure the crop because the grades could not be ascertained without curing, strip the tobacco, and bundle the specified grades separately. To do this required the exercise of judgment as to what particular tobacco should be bundled as wrappers and binders and what should be bundled as fillers and what should be excluded as below the contract grades, such tobacco ordinarily being designated as stemming tobacco. When the tobacco was graded and bundled the buyer was tO' examine it. This examination could only be made for the purpose of determining whether or not he would accept the tobacco as graded by the plaintiff. The contract contemplated that differences of opinion might arise as to the grading of the tobacco. The finding of the jury in response to question No. 7 is clearly not sustained by the evidence. It appears without dispute that the tobacco when sold to a third party was weighed and inspected. It further appears that after the examination made by the defendant on the 25th day of February the • plaintiff re-graded and re-bundled some of this tobacco, for it appears that the number of bundles tendered at the time of the sale to the third party as wrappers and binders is less than the number of bundles tendered the defendant on February 25th. [474]*474The net weight of the tobacco claimed as binders and wrappers after re-grading was 6,430 pounds. The amount found by the jury of this grade was 5,787 pounds, and although the jury found in response to question No. 2 that there was no wet or damaged tobacco in that bundled by the plaintiff as wrappers and binders, they nevertheless for some reason deduct ten per cent, from the actual weight of the tobacco as to which there was no. dispute. The jury found that there was a substantial amount of tobacco tendered as binders and wrappers which was not of that grade. This sustains the claim of the defendant which was at the time of his examination on February 25, 1921, that there was in the bundles tendered to him as binders and wrappers, tobacco that should properly have been put in a lower grade. This shows that the examination made was in good faith and that it disclosed the facts as they existed.
Assuming as we must, in view of the verdict of the jury, that there was in the bundles tendered as being of the contract grades, tobacco of inferior grades, what was the obligation of the defendant under the terms of the contract, which provided that “if the amount of damage cannot be satisfactorily agreed upon the seller agrees to return the advance money and surrender this contract ?” This implies an agreement to agree upon the amount of damages, and if it related to a principal element of the contract its indefiniteness would no doubt render the whole contract unenforceable. 1 Page, Contracts (2d ed.) § 89.
It is, however, a subsidiary rather than a principal promise. It relates solely to grading of the tobacco, the grades having a well established and well understood meaning in the trade. The principal elements of the contract are clear and definite; the amount and quality of goods, all those of the specified quality raised by the plaintiff during the season of 1920; price thirty-five and one-half cents per pound for wrappers and binders, ten cents per pound for fillers; place of delivery, Coon Valley; and while the time of delivery [475]*475is not specified, there is no dispute but that it was to be delivered within a reasonable time after, it was in a deliverable state, which would ordinarily be some time in March or April succeeding the time of the making of the contract; payment to be made on delivery. The principal terms of the contract being definite, it is enforceable.
Certainly the contract does not require the defendant to accept tobacco not of the contract grades merely because it is bundled by the grower with the grades specified in the contract. The term “damage” as used in the contract is somewhat indefinite, but it is apparently used and was understood by the parties to be used in the sense of indicating the amount that should be deducted from the amount tendered in order to make a'proper allowance for wrong grading. It was the contention of the defendant that the tobacco tendered was of such an inferior grade that it would not pay to grade it by running it over the table, which appears to be the only way the grades could be accurately established. However, the jury has found against the defendant on that' contention. As applied to the subject matter here dealt with, we are of the opinion that the phrase unquestionably meant and was intended by the parties to mean that if upon inspection of the tobacco upon the premises of the plaintiff by the defendant it appeared that there was tobacco of inferior grades in that tendered, the parties should make a bona fide effort to agree as to the amount of the non-contract tobacco so included; that if after the making of such an effort the parties were unable to agree, the contract was then to be terminated and both parties released therefrom. Manifestly, good faith is no more required on one side than on the other, and if one party arbitrarily refused to perform he could not complain of nonperformance by the opposite party. Under the circumstances here disclosed, upon tender of the goods by the plaintiff, claiming that the goods tendered were of the contract grades, it would require the defendant, who claimed there was inferior to[476]*476bacco, to make an offer having a reasonable relation to the amount of inferior or damaged tobacco there was in the bundles tendered to him. If there was but a very small percentage and he offered to accept, nothing less than a fifty per cent, reduction, that could not be said to be a reasonable offer or a bona fide attempt on his part to arrive at an agreement. On the other hand, if the buyer made a proposition to the seller to ascertain the actual amount of tobacco in the bundles of contract grades by re-grading and the seller refused to consider anything less than the total amount tendered, that would not constitute a bona fide effort on his part to agree as to the amount of damage and would operate to terminate the contract..
Assuming, as the jury found, that there was in the bundles tendered tobacco not of the grade specified in the contract and a satisfactory agreement could not be reached, then the contract was by its terms at an end and both parties were discharged. We have been cited to and we find no case construing a contract like the one here under consideration or fairly comparable to it. In the absence of the provision which prescribed that the contract, in case of failure to agree, should be at an end, the seller could no doubt recover at the contract price for the amount of goods of the contract grades actually in the bundles tendered; that is, the contract would not be at an end. The grades might be established in other ways; that is, the contract might in that respect be made certain.
Indefiniteness of a subsidiary covenant not a vital part of the contract does not render the contract unenforceable. 1 Page, Contracts (2d ed.) § 105; 1 Williston, Contracts, § 48.
As to contracts which are incomplete by their terms, or where the terms are to be settled by future negotiations and as to the effect of uncertainty as to the subject matter and time in contracts, see 1 Page, Contracts (2d ed.) §§ 87-105; Goldstine v. Tolman, 157 Wis. 141, 147 N. W. 7.
[477]*477This brings us to a consideration of the defendant’s second contention, that there is no evidence to sustain the finding of the jury as to the amount of tobacco tendered as wrappers and binders. As already pointed out, the plaintiff sold the tobacco to a third party, at which time it was weighed, and the amount which had been bundled by the plaintiff as wrappers and binders after some re-grading weighed 6,430 pounds. The jury in response to questions Nos. 2 and 3 found that there was no wet or damaged tobacco in these bundles, but deducted from the undisputed amount ten. per cent, and so found 5,787 pounds of good tobacco. These findings are inconsistent and cannot stand together. Assuming that the defendant did not malee a bona fide effort to agree with the plaintiff upon the amount of damage in the tobacco, as that term is hereinbefore construed, and that the plaintiff did make a bona fide effort to agree upon the amount of damage, it nevertheless remains true that the plaintiff can recover only for.the amount of tobacco tendered which was of the grades specified. The evidence seems to be overwhelming that there was tobacco in the bundles tendered as wrappers and binders which was not of that grade, and one very persuasive fact in that connection is that plaintiff voluntarily, upon the open market, sold the entire crop as stemming tobacco, a grade still lower than fillers. Stemming tobacco is concededly an ■ inferior grade of tobacco. It is hardly conceivable that the plaintiff would have sold his entire crop as stemming tobacco in the open market if it was in fact properly graded or contained an amount of wrappers, binders, and fillers which would have warranted him in re-grading it. In addition to that, the purchaser, who was a witness for the plaintiff, testified that the crop was not a number one crop and hot fit for binders and wrappers, but says that it might have been run over the table, meaning thereby that it might have been-re-graded. The burden of proof is upon the plaintiff to establish the amount of tobacco of the contract grades [478]*478tendered, and we find no evidence in the case from which the jury might say that ninety per cent, or any other per cent, of the amount tendered was in fact of'the contract grades. The finding of the jury, therefore, that there were 5,787 pounds of good tobacco tendered, of the grades designated as wrappers and binders, must be set aside.
The trial-court submitted the case as if the duty to make a good-faith effort to agree upon the damage rested primarily, if not wholly, on the defendant. The obligation is mutual. One party cannot agree. The defendant claims that the plaintiff insisted at all times that he was entitled to the contract price for the bundles tendered without deduction. If that is true, the defendant was released and the contract was at an end. The issues should be so framed as to find the element of good faith as to both parties as already indicated.
By the Court. — Judgment reversed, and cause remanded for a new trial. ’